Smith v. Astrue

Filing 33

ORDER granting 31 plaintiff's attorney's motion for attorney fees (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 1/10/2012. (ks) Modified on 1/10/2012 to change order to a written opinion (ks).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHEILA K. SMITH,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. CIV-09-612-M

ORDER
Before the Court is plaintiff’s attorney’s Motion for Attorney Fees Under 42 U.S.C. § 406(b),
filed November 30, 2011. On December 14, 2011, defendant filed his response. Upon review of
the parties’ submissions, the Court makes its determination.
On August 27, 2010, this Court entered a judgment in favor of plaintiff, reversing the
Administrative Law Judge’s decision and remanding the case for further proceedings. Plaintiff filed
an application for an award of attorney fees pursuant to the Equal Access to Justice Act (“EAJA”),
and on December 1, 2010, the Court awarded attorney fees pursuant to the EAJA in the amount of
$7,319.80. On remand, the Social Security Administration issued a decision awarding past due
benefits in the total amount of $32,137.00. Plaintiff’s attorney now moves this Court, pursuant to
42 U.S.C. § 406(b), to approve an award of attorney fees in the amount of $8,034.25.
Section 406(b) provides, in pertinent part:
Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney,
the court may determine and allow as part of its judgment a
reasonable fee for such representation, not in excess of 25 percent of
the total of the past-due benefits to which the claimant is entitled by
reason of such judgment, and the Commissioner of Social Security
may, notwithstanding the provisions of section 405(i) of this title, but

subject to subsection (d) of this section, certify the amount of such
fee for payment to such attorney out of, and not in addition to, the
amount of such past-due benefits. In case of any such judgment, no
other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
42 U.S.C. § 406(b)(1)(A).
The United States Supreme Court has concluded:
§ 406(b) does not displace contingent-fee agreements as the primary
means by which fees are set for successfully representing Social
Security benefits claimants in court. Rather, § 406(b) calls for court
review of such arrangements as an independent check, to assure that
they yield reasonable results in particular cases. Congress has
provided one boundary line: Agreements are unenforceable to the
extent that they provide for fees exceeding 25 percent of the past-due
benefits. Within the 25 percent boundary . . . the attorney for the
successful claimant must show that the fee sought is reasonable for
the services rendered.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (internal citation omitted). Further,
[i]f the attorney is responsible for delay, for example, a reduction is
in order so that the attorney will not profit from the accumulation of
benefits during the pendency of the case in court. If the benefits are
large in comparison to the amount of time counsel spent on the case,
a downward adjustment is similarly in order.
Id. at 808 (internal citations omitted).
Having carefully reviewed plaintiff’s attorney’s motion, the Court finds that plaintiff’s
attorney’s motion for attorney fees was filed within a reasonable time of when he received the notice
of entitlement to receive fees under Title II. The Court further finds that an award of $8,034.25,
which is twenty-five percent of plaintiff’s past due benefits awarded, is reasonable for the services
plaintiff’s attorney rendered in this case. Accordingly, the Court GRANTS plaintiff’s attorney’s
Motion for Attorney Fees Under 42 U.S.C. § 406(b) [docket no. 31] and, pursuant to 42 U.S.C. §
406(b), AWARDS plaintiff’s attorney an attorney fee in the amount of $8,034.25, to be paid out of
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the past due benefits plaintiff received by reason of the judgment in this case. The Commissioner
of the Social Security Administration shall pay said fees directly to plaintiff’s attorney Steve A.
Troutman of Troutman & Troutman, P.C. Further, pursuant to Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986), plaintiff’s attorney will refund to plaintiff the $7,319.80 in EAJA fees previously
awarded.
IT IS SO ORDERED this 10th day of January, 2012.

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